A New Global Landmark for Free Speech

Wed, 06/16/2010 - 00:00

Could we be reaching a turning point in history where the monopoly on societal communication enjoyed by governments and corporations is finally broken? Will the commoners be able to share information freely without risking jail, civil penalties or authoritarian retribution?

The pioneering website on these questions is surely Wiklileaks, which in only three years has become the leading venue for whistleblowers from around the world. Founder Julian Assange — who has been likened to Daniel Ellsberg, who leaked the Pentagon Papers in 1971 — has posted hundreds of otherwise-secret documents that are highly embarrassing to governments, corporations and powerful individuals. Most recently, Wikileaks released a classified U.S. military video video of American gunships killing 12 Iraqi civilians, complete with brutish audio by the pilots.

As the Web becomes the medium-of-choice for communicating with the public, the laws governing Web communication become that much more significant. Wikileaks has been able to assure the confidentiality and security of its postings — not to mention its protection against libel suits — by ingeniously routing its Web communications through servers in countries with hospitable laws. It also sends its documents to selected journalists, who enjoy special legal protections in certain countries.

As detailed in a recent New Yorker magazine profile, Assange himself has had to live the life of a fugitive in order to evade enraged Pentagon agents who "want to talk to him." Recently, Assange declined to appear in person at the Personal Democracy Forum in New York City because he had been advised not to travel to countries that do not respect the rule of law.

Good call! The U.S. Supreme Court has just sanctioned the authority of the U.S. Government to "disappear" people; it rejected a legal appeal by Maher Arar, a Canadian citizen who, as he was changing planes in New York en route home, was spirited away to a Syrian jail, tortured and held without charges for a year. That is okay with the Supreme Court.

All of this is by way of backstory. The big news about freedom of expression and communication for the commoners arrives today from.... Iceland!

By a unanimous vote, the Iceland legislature has just passed the Icelandic Modern Media Initiative, a proposal that will make Iceland a "safe haven" for investigative journalists, bloggers, publishers, whistleblowers, authors and others who wish to communicate information freely with the world. The proposal draws upon the best parts of a number of laws in a variety of nations — Scotland, France, Belgium, Sweden, the United States and others — for libel, press and whistleblower protection, free expression and open communication. The proposal also establishes a "Nobel Prize" for freedom of expression that has the potential to become a globally respected landmark.

The unanimously adopted proposal — not yet a law — was inspired by an instance of press censorship. In August 2009 the leading Icelandic television network, RUV, was about to run a story about the country’s largest bank, Kaupthing Bank, based on documents posted on Wikileaks. (Recall that Iceland had just experienced a total meltdown from the world’s financial crisis only months earlier, thanks to banks such as Kaupthing.) The bank obtained an injunction and successfully stopped the story from being aired.

The uproar over the suppression of information prompted the Icelandic legislature to approve the IMMI proposal, which, when fully developed by government ministries, will be a media "superlaw" that consolidates the most progressive media laws from around the world.

People might wonder, Why would the IMMI matter to a dissident blogger in Egypt, a journalist in Africa or a whistleblower in the United States? The answer is: information that is posted on Web servers in Iceland would be governed by the new law.

The success of Wikileaks is based in part on its routing of information through countries with favorable laws. For example, when the South African Competition Commission (SACC) was due to release a 590-page report on fee-fixing by four South African banks, the banks demanded — and won — the right to edit the report before its release. However, an unredacted version was obtained — and leaked to Wikileaks.

SACC demanded that Wikileaks remove the unredacted report from its website, but Wikileaks refused. Then the South African government appointed a criminal prosecutor to try to identify the leaker. Wikileaks responded with a warning: if the SACC and investigation continued, it could risk criminal prosecution under the laws of Sweden and Belgium. Why?

Because WikiLeaks routes the communications with its sources through Sweden and Belgium, and publishes from Sweden. The Swedish constitution has protection for source anonymity and Belgium law has protection for journalist-source communications confidentiality. Since both jurisdictions were involved in a meaningful manner with the act of disclosure being investigated, both could claim jurisdiction over the matter. Whether, ultimately, the highest South African courts would recognize the rights of Sweden and Belgium in this matter was not of consequence; it was not something that individuals within the South African government wanted to risk, nor, presumably, did they want to risk legal problems when traveling. The investigation was dropped and the source was protected.

While the IMMI is likely to help smaller websites, investigative journalists, whistleblowers and others to enjoy the broadest possible protections for the things they publish. It does not mean that journalists and others will be utterly immune from the laws in their own country, or that government agents or thugs won’t beat them up. The IMMI is no magic bullet.

But the IMMI does set a new world standard for enlightened protection of the information commons, over and against its systemic abuses by governments and corporations. Instead of a "race to the bottom" toward the least-protective laws for free expression, there just might be a "race to the top" to emulate Iceland’s new, pacesetting law.

Here is a summary of the key elements of the IMMI legislation taken from the IMMI website:

The Icelandic Prize for Freedom of Expression. Iceland’s first internationally visible prize.

An ultra-modern Freedom of Information Act. Based on the 2009 CoE and OAS recommendations as well as modern elements in the FOI laws of Estonia, Scotland, the UK and Norway as well as the Aarhus treaty. (scope: Iceland)

Whistleblower protections. Protection for those who step forward to reveal important matters in the public interest, based on the U.S. False Claims Act and the U.S. Military Whistleblowers Act. (scope: Iceland)

Source protection. Protection for anonymous sources who attempt to communicate to the public after a promise of confidentiality by a journalist or media organization. Based on new EEA legislation.

Source-journalist communications protection. Protection for the communications between an anonymous source and a media organization and internally within a media organization prior to publication. Based on the Belgium source protection law of 2005.

Limiting prior restraint. Prior restraint is coercion of a publisher, by a government authority, or through the judicial system, to prevent publication of a specific matter. While the Icelandic Constitution provides the right to freedom of expression, small modifications are needed to reduce the possibility of prior restraint.

Protection from “libel tourism” and other extra-judicial abuses. Non-observance of foreign judgments that violate Icelandic freedom of expression protection, and the ability to file a counter-suit in Iceland against a party who engages in a calculated attempt to suppress the speech freedoms of an Icelandic entity. Inspired by legislation passed by the states of New York and Florida and proposed legislation elsewhere.

Statute of limitations on publishing liabilities. Recent rulings in Europe maintain that, for a internet publications, each page view is publication afresh, regardless of how long ago the material was first released. This has resulted in the silent removal of investigative newspaper stories, including those over five years old, from the on-line archives of the Guardian and and other major newspapers.

Process protections. The majority of legal suits related to publishing settle before final judgment. Hence, the court process itself must ensure that it is not used to suppress speech through unequal access to justice, subpoenas or other interlocutory motions. Process protections (called anti-SLAPP laws in the U.S.) permit a judge to declare the matter a free speech related case, at which point protections are activated to prevent such abuses.

Virtual limited liability companies. Based on the LLC legislation used in the U.S. state of Vermont

A commentator on the Icelandic vote notes that a number of government ministries will have to develop the new proposal into legislation, and that might "either take the form of one large law proposal or many specific law proposals, each tackling a separate issue."

But the consensus is clear for Iceland. If its standards of free expression and communication become the norm, or at least the presumptive ideal, they will go a long way towards assuring greater transparency, democracy and accountability in nations where institutional secrecy and abuse are rampant.